Fred J. Kiesel & Co. v. Sun Ins. Office of London

• Citation: 88 F. 243
• Decision Date: 20 June 1898
• Docket Number: 1,027.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: FRED J. KIESEL & CO. v. SUN INS. OFFICE OF LONDON.

88 F. 243

FRED J. KIESEL & CO. v. SUN INS. OFFICE OF LONDON.

No. 1,027.

United States Court of Appeals, Eighth Circuit.

June 20, 1898

A. R Heywood (Hugh A. Tait, on the brief), for plaintiff in error.

T. C Van Ness, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge.

This writ of error challenges a judgment for the defendant in error, the Sun Insurance Office of London, an insurance corporation, in an action brought against it by the plaintiff in error, Fred J. Kiesel & Co., a corporation, on a policy of fire insurance upon merchandise that was situated in a warehouse at Ogden, in the state of Utah. One of the clauses of this policy reads: 'If a building, or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease. ' The complaint of the plaintiff contained the usual allegations of the issue of the policy the destruction by fire of the merchandise insured, the proof of the loss, and a demand for its payment. In its answer the defendant denied that the goods were destroyed by fire, and that proper proof of loss was made, and then averred that the building in which the merchandise was contained fell, not as a result of fire, but as a result of wind, before either the building or the goods within it were destroyed or injured by fire. When the case came to trial, the defendant stipulated that, if it was liable at all, it was liable for the full amount of the policy, and that the proof of loss was sufficient in that event, but 'did not admit that it was liable, but, upon the contrary, alleged and claimed and stood upon the proposition that in truth the building was blown down by a gale of wind on the night of the 18th of September and that, after the building had been blown down, a fire started in the debris, and destroyed to some extent, the contents; that the only real issue to be tried was whether or not the loss occurred from fire,-- that is, whether the building first caught fire, which resulted in the destruction of the building and its contents, or whether it fell before the fire began. ' This issue was tried by a jury for five days. Evidence was introduced, on the one hand, tending to show that the warehouse was on fire, and that the flames were breaking through its roof while every part of it was still standing; and, on the other hand, that material portions and substantially all of the warehouse had fallen from a cause other than fire, and unconnected with fire, to wit, from a gale of wind, prior to the occurrence of fire on the goods insured or on the building. The principal complaint in the case is: That at the close of the trial the court below refused to give to the jury the following instruction, which was requested by counsel for the plaintiff: 'If you believe from the evidence that the fire had originated, and that the building or any portion of the insured goods therein contained was on fire and burning, before the building or any part thereof fell, your verdict should be for the plaintiff, notwithstanding you may find from the evidence that subsequently the building or some substantial part thereof fell, and that the same would not have fallen but for the wind which was blowing at the time. ' That it charged them on this subject in these words: 'If this building, or any substantial part thereof, fell before the fire, or before any portion of the merchandise insured (and this policy is on the merchandise within the building, and not on the building itself), before any portion of that merchandise was injured by fire, and it so fell, not as the result of the fire, but as the result of something else, your verdict should be for the defendant in this case, and not for the plaintiff. ' And that when counsel for the insurance company, at the close of the charge, excepted to this portion of it, and said, 'As I understand the charge of the court, no matter to what extent the building was burning, if the goods were not on fire, no liability would attach,' the court turned to the jury, and further charged them in this way: 'Perhaps, gentlemen, I did not explain fully what I meant on that subject. If that building fell, even after the fire had originated, but fell from a cause distinct from the fire,-- in other words, if the fall was not caused by the fire,-- and if at the time it fell the goods had not caught fire, and had not been damaged by fire, the defendant would not be liable in this case. If, on the other hand, the goods-- and the goods and merchandise only were insured-- in the building, if those goods had been damaged by fire or had caught fire prior to the falling of the building, you will find for the plaintiff.'

It is plain from the request of the plaintiff's counsel, which we have quoted, and from the instructions given by the court that the only question of law at issue between court and counsel was whether or not the defendant was liable under its policy in case the building, or a substantial part thereof, fell from some other cause than fire after fire had attacked it, and before any of the goods insured were burned. No words occur to us more apt, terse, and expressive than those contained in the policy with which to answer this question: 'If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease. ' If the building falls before the goods insured are damaged by fire, and if the fall is not caused by fire, from that instant the insurance ceases. The purpose of parties to an insurance policy in making their contract is to indemnify the insured against all destruction or damage caused by fire, but to give no indemnity against any destruction which resulted from other causes. Naturally, the dominant thought throughout the entire agreement, and hence the key to its interpretation and the measure of the liability of the company under it, is the cause of the destruction or damage. Generally speaking, if that cause is fire, there is liability. If fire is not the cause, there is no liability. In the particular clause in issue in this case, the same purpose controls, the same key interprets, the same test determines the liability. If the fall of the building was caused by fire, then the defendant was liable, whether the goods insured were burned before or after the fall; but if the fall occurred before the fire attacked the goods, and if that fall was caused by an earthquake, by a waterspout, by a cyclone, or by any other cause than fire, the express agreement was that, when the fall occurred, the insurance ceased, and there was no liability. If the building was on fire, and if it would not have fallen without the fire, its fall might well be said to have been the result of the fire; but if it was on fire, and if it would have fallen by the force of the wind if there had been no fire, then its fall could not be said to have been the result of the fire, and the defendant was not liable. Herein was the fatal defect in the instruction...